Friday, November 21, 2008 Substantial similarity By Clint Fabiosa & Andrew Ong I protect
IN copyright infringement cases, courts do not always see two contending works being exactly similar to each other. In fact, it is quite expected that the one being sued will contend that his or her work is very dissimilar from the one who sued—offering a lengthy recitation of differences between his or her work from another.
However, more often than not, when courts are faced with this issue, they turn to the “total concept and feel” of the works to examine whether there is substantial similarity between two contending works. When works do have substantial similarity in their “total concept and feel,” there is copyright infringement.
In a US case, Knitwaves Inc. versus Lollytogs Ltd., the United States Court of Appeals for the Second Circuit ruled that Lollytogs’s sweaters infringed Knitwaves’s.
In 1990, Knitwaves Inc., a manufacturer of children’s knitwear, introduced its “Ecology Group” collection of sweaters, consisting of various styles of girls’ sweaters and accompanying skirts and pants, presenting “ecology” themes in “fall” colors. It obtained copyrights for the designs of the two sweaters at issue in this litigation—its “Leaf Sweater,” a multicolored striped sweater with puffy leaf appliques, and its “Squirrel Cardigan,” which has a squirrel and leaves appliqued onto its multi-paneled front.
In 1992, Lollytogs Ltd., a larger manufacturer which sells children’s clothing under the nationally advertised French Toast label, introduced a competing line of fall sweaters, including a similar-looking Leaf Sweater and Squirrel Cardigan.
On trial Lollytogs does not dispute the validity of Knitwaves’ copyrights or that it copied Knitwaves’ sweater designs; it contends, however, that it altered the designs enough so that its sweaters are not “substantially similar” to Knitwaves,’ Lollytogs’s designers took conscious efforts to “change what was original” in the sweaters so as to avoid copyright infringement. The court ruled that there was copyright infringement.
